Sinclair v Accident Compensation Corporation [2012] NZHC 2564 (4 October 2012)

Last Updated: 17 October 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1715 [2012] NZHC 2564

IN THE MATTER OF an appeal under section 162 of the Injury Prevention, Rehabilitation and Compensation Act 2001

BETWEEN HAZEL SINCLAIR Appellant

AND ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 17 September 2012

Counsel: A C Beck for appellant

I G Hunt for respondent

Judgment: 4 October 2012

_{RESERVED JUDGMENT OF DOBSON J}

[1] This decision deals with Ms Sinclair’s application for leave to appeal to the Court of Appeal against my decision which dismissed her appeal from a District Court decision.

[2] The appeal before me turned on the argument for Ms Sinclair that a claim she had made in 2006 was or ought to have been treated by the respondent (the Corporation) as one for cover for a mental injury following a physical injury under the accident compensation scheme. Her argument was that because the Corporation had not made a decision on a claim of that type, she was entitled to the benefit of the default provisions in s 58 of the Accident Compensation Act 2001 (the Act), which

_{deems the Corporation to have made a decision as to cover in favour of a claimant,}

SINCLAIR v ACCIDENT COMPENSATION CORPORATION HC WN CIV-2011-485-1715 [4 October 2012]

where the Corporation has not made an actual decision within relevant statutory time limits.

[3] My decision, consistent with the outcome in the District Court, was that no claim had been made by or on behalf of Ms Sinclair for cover for a mental injury consequent upon a physical injury for which cover had been granted, so that hers was not a situation to which the “deemed decision” provision applied.

[4] On behalf of Ms Sinclair, Mr Beck wishes to challenge my interpretation of the provisions of s 48 of the Act that specify what is required for a claimant to lodge a claim for cover and/or entitlements. He wishes to argue that my judgment adopts an unduly literal approach to the requirements of that section, and that a more liberal approach is warranted in the statutory context where the Corporation is charged with assisting claimants, and doing all that is reasonably appropriate to ensure that claimants are assisted to qualify for all appropriate benefits to which they are entitled. I concluded that Ms Sinclair’s actions did not qualify as a claim under s 48 that would require the Corporation to consider it and produce a decision on her entitlement to cover. However, Mr Beck would argue that, irrespective of the form and terms on which Ms Sinclair applied, the Corporation should have treated it as an application for cover, triggering its obligation to make a timely and reasonable decision.

[5] The scope of any further appeal to the Court of Appeal is limited to questions of law. Notwithstanding that, Mr Beck argued that the reasoning in my judgment was affected by two factual findings or inferences that are incorrect. First, that subsequent to the dealings between the Corporation and Ms Sinclair leading to the present appeals, she had made a separate application for cover for mental injury consequent upon a physical injury in respect of which cover had been accepted. In reality, no such discrete application had been lodged and, rather, the Corporation had assessed Ms Sinclair’s entitlement to cover for a mental injury on the basis of the previous interactions between the parties. Mr Beck’s point was that instead of the Corporation being justified in not treating her original application as a claim for cover, the Corporation had taken subsequent initiatives which demonstrated its ability and preparedness to deal with it as such a claim.

[6] The second factual matter Mr Beck raised was to imply a finding that Ms Sinclair’s chronic pain syndrome could not properly be thought of as a mental injury. The reasoning does not traverse that point and it was not relevant to the analysis of whether the communications from Ms Sinclair and on her behalf could be treated as a claim for cover for mental injury consequent upon a physical injury for which cover had been accepted.

[7] In considering whether to grant leave, the applicant must identify an issue of law that is capable of bona fide and serious argument, and which assumes sufficient importance to justify a further appeal. In the present circumstances, that would amount to a third reconsideration of the Corporation’s original decision. Requisite importance might be recognised if the point is likely to arise generally or in a range of circumstances, or if it is of such importance that the interests of justice require recognising the appropriateness of a further appeal. Ultimately, the interests of

justice should require that leave be granted.[1]

[8] I am persuaded that there is an issue of some general importance in defining the minimum requirements for a claim to either or both of cover or entitlements under the Act. If the threshold for a claimant to adequately commence a claim is materially less than that adopted in my interpretation of s 48 of the Act,[2] then any more liberal approach is likely to have general application to the Corporation’s work in responding to claims for cover.

[9] If leave is granted on this question and Ms Sinclair were to succeed on a further appeal, the outcome would be that the Corporation had (albeit unwittingly) failed to make a decision on cover, triggering the “deemed decision” provisions of s 58. The Corporation would have to treat her as having cover in respect of a claim for mental injury consequent upon a physical injury, when that proposition had not been put to the Corporation for consideration in the relevant period.

[10] The artificiality of such an outcome is increased by the subsequent history:

_{the Corporation has undertaken discrete consideration of Ms Sinclair’s entitlement to}

cover for a mental injury following physical injury, declining to grant such cover in an initial decision in February 2009. Since then, Ms Sinclair applied to review the Corporation’s initial decision which resulted in that original decision being quashed, but a further decision in February 2010 was made to the same effect as the original one, declining cover for mental injury. That decision has also been the subject of an application for review which was dismissed in November 2010, and since then an appeal from the Corporation’s decisions has been pending in the District Court. Mr Beck is not instructed in relation to those proceedings and could not provide any explanation as to the apparently unusual length of the delay in having that appeal brought on.

[11] Section 65(2) of the Act empowers the Corporation to revise a decision that has been deemed to be made under s 58 of the Act. Accordingly, in the present case, Ms Sinclair could not expect to hold the Corporation to the favourable effect of a deemed decision in her favour under s 58 if, in dealing with the substance of her claim, the Corporation continues to adhere to its present view, which is that she does not qualify for cover for a mental injury consequent upon a physical injury in respect of which cover has been granted.

[12] In one sense, that projected scenario lessens the importance that can be attributed to the question of law sought to be argued on further appeal. It does not, however, deprive the proposed question of the prospect of its more general application. On balance, I am satisfied that the question retains a requisite level of importance.

[13] In arguing the appeal before me, Mr Beck raised the prospect that matters conveyed to Ms Sinclair gave rise to a legitimate expectation that her application would be treated as a claim for cover for a mental injury consequent upon a physical injury in respect of which cover had been accepted. Such an expectation had been frustrated by the outcome. He sought to argue that such an expectation required the Corporation to deal with her as if her original claim had been one for cover for a mental injury consequent upon a physical injury. On the approach I adopted to the interpretation of s 48, any material legitimate expectation would have involved the Corporation acting outside its statutory powers. It is generally accepted that such an

expectation cannot be a legitimate one for public law purposes. Mr Beck also sought leave to argue on further appeal a challenge to this approach, to the extent that it limits the potential application of legitimate expectation. However, the point would be unnecessary if a broader interpretation of s 48 is accepted, to an extent that Ms Sinclair’s claim was sufficient to constitute a claim for cover for mental injury. If that proposition was not upheld on appeal, then the constraint Mr Beck accepts applies to the potential application of legitimate expectation would mean that it could not avail in any event. The question on legitimate expectation therefore does not warrant consideration on a further appeal.

[14] Accordingly, I grant leave to further appeal to the Court of Appeal on the first aspect of the questions of law on which leave was sought, namely:

Did the High Court adopt the wrong test to determine whether a claim for cover was made by the applicant? If so, is the applicant entitled to a deemed decision on the correct test?

[15] There will be no order as to costs.

Dobson J

Solicitors:

Peter Sara, Dunedin for appellant

Young Hunter, Christchurch for respondent

---

[1] See generally Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA); Jackson v

_{ACC HC Auckland AP 404-96-01, 14 February 2002; Kenyon v ACC [2002] NZAR 385 (HC).}

[2] Sinclair v ACC [2012] NZHC 406 at [25], [42](a).